SOME ISSUES OF BRINGING TO RESPONSIBILITY OF THE DEBTOR'S CONTROLLING PERSONS

Currently, there is a tendency of the legislator and the law enforcement officer to expand the range of persons to be held liable for actions (omissions) that caused losses to the legal entity. At once we will define that in this article only the commercial corporations having an organizational and legal form will be considered: limited liability company and joint stock company.

The legislator gradually introduces the figure of the person influencing the adoption and Commission of certain actions by a legal entity.

Thus, since September 2014, the provisions on the liability of persons authorized to act on behalf of a legal entity, members of collegial bodies of a legal entity, as well as persons actually determining the actions of a legal entity enshrined in article 53.1, have been in force in civil law. Civil code of the Russian Federation.

Besides, in 2001 the legislator provided such term as "the controlling person" which was reflected in Art. 81 of the Federal law "On joint-stock companies", and later and in Art. 44 of the Federal law "On limited liability companies". In these cases, we are talking about bringing to responsibility the person before the company, which was actually influenced.

In the field of bankruptcy of legal entities, the term "controlling person of the debtor" is used, which means a legal or natural person who has or had no more than three years prior to the occurrence of signs of bankruptcy, as well as after their occurrence before the adoption by the arbitration court of an application for recognition of the debtor bankrupt the right to give binding instructions to the debtor or the ability to otherwise determine the actions of the debtor, including the transactions and the definition of their terms [1].

The Resolution of the Plenum of the Supreme Court of 21.12.2017 n 53 "About some questions connected with attraction of supervising debtor of persons to responsibility in case of bankruptcy" provides that the responsibility of the person who actually carried out the control of the debtor.

Thus, both General provisions of corporate law and special provisions provide for the possibility of bringing to responsibility persons who are not only legally formally controlling, but also actually have an impact on the debtor's actions that led to losses. This possibility seems fair and reasonable, with the aim of bringing to justice the person actually responsible for causing losses to the Corporation.

However, the expansion of the circle of controlling persons does not solve the problem that arises in practice: through what evidence base it is possible to determine whether a person was actually controlling, since the presence of only kinship or property relationship with a person (cohabitation, friendship) legally having the authority to give mandatory instructions to a legal entity is not enough, which is certainly legitimate.

The mechanism for determining the persons who actually had an impact on the Corporation, as a result of which the company suffered losses, is not regulated. It is assumed that it is not possible to provide for a universal method of determining the actual controlling person, and each case should be considered by the courts individually, taking into account the evidence available in the case file.

However, at present the uniform practice allowing it on the basis of conclusions, is still not formed. And such non-resolution leads to the difficulty of determining by the plaintiffs, claiming to bring to responsibility the controlling debtor of persons, relevant and admissible evidence sufficient to substantiate their position.

For example, the courts of first and appellate instance considered insufficient to recognize a person as actually controlling the totality of such information as: the testimony of a witness; the existence of the fact of the state of the defendant and the sole founder of the debtor in the marital relationship; the coincidence of the legal addresses of the defendant and the legal entity, the relationship with which was disputed and the sole founder of which was the defendant; and the management of funds in the accounts of these organizations from the same IP-address. The decision of the Arbitration court of far East district from 15.02.2018 in case number F03-193/2018 judicial acts was upheld.

In addition, I would like to note another problem related to the prosecution of a person nominally entitled to give binding instructions to a legal entity.

As a General rule, the head, who is formally a member of the bodies of a legal entity, but did not carry out the actual management, does not lose the status of the controlling person[2]. But in contrast, there is a special provision applied in bankruptcy cases, according to which the arbitration court may reduce the amount of subsidiary liability of the "nominal" Manager, or such person may be completely released from liability, provided that such person proves that he / she was not able to influence the activities of the legal entity by his / her actions, orders, as well as help to identify the person who actually exercised control in this company and /or to find the property hidden by the latter.

For example, there is a court practice, according to which the Arbitration court of the Kaliningrad region, having considered a separate claim in the bankruptcy case, refused to attract subsidiary liability of a person as a controlling debtor, which, according to the Protocol of the General meeting of participants of the company was appointed to the position of General Director, as well as included in the membership of the debtor by making a share in the authorized capital. During the proceedings, the defendant said that the company did not enter, before the initiation of the proceedings did not know that, allegedly, is a party to it and the Executive body, he lives and works in another city than the debtor. In the production of handwriting examination it was found that the signature in the minutes of the General meeting is made by any other person not the defendant, evidence of changes in EGRUL against the defendant is not represented. On the basis of this information, the court concluded that the defendant was not the controlling person of the debtor and refused to bring the person to subsidiary liability.

However, the court did not establish the fact that the defendant assisted in the discovery of the actual controlling person or property. The court based the refusal of the claims only on the fact of the "rating" of the defendant. At the same time, the court did not even examine other documents on the question of the presence/absence of signatures of the defendant, while the presence in the Protocol of the General meeting of participants of the signature of the person entering the company is not necessary, since the decision is made by the current participants (founders). It appears that the court has in the present case recklessly concluded that it had not examined the facts of the case properly.

Otherwise, in the case of the formation of judicial practice of this kind, the problem of registration of documents with fictitious signatures by unscrupulous controlling persons will become acute. And are such persons subject to exemption from subsidiary liability on the basis of the signature of another person?

Thus, the difficulty of identifying the person who actually had an impact on the actions (inaction) of the controlled person, which caused losses for the latter, is associated with the intentional concealment of real legal relations and is expressed in the absence of an established mechanism for determining such a person.

To date, neither the legislator nor the law enforcement officer has established criteria for determining the person as actually controlling.

References:

1. О несостоятельности (банкротстве): федер. закон от 26.10.2002 № 127-ФЗ [Электронный ресурс] // Режим доступа: // СПС «КонсультантПлюс».
2. Постановление Пленума Верховного Суда РФ от 21.12.2017 № 53 «О некоторых вопросах, связанных с привлечением контролирующих должника лиц к ответственности при банкротстве» [Электронный ресурс] // Режим доступа: // СПС «КонсультантПлюс».
3. Постановление Пленума Высшего Арбитражного Суда РФ от 30 июля 2013 г. № 62 «О некоторых вопросах возмещения убытков лицами, входящими в состав органов юридического лица» [Электронный ресурс] // Режим доступа: // СПС «КонсультантПлюс».
4. Постановление Арбитражного суда Дальневосточного округа от 15.02.2018 по делу № Ф03-193/2018 [Электронный ресурс] // Режим доступа: // http://ras.arbitr.ru
5. Постановление Арбитражного суда Северо-Западного округа от 15.11.2018 по делу № А21-11232/2014 [Электронный ресурс] // Режим доступа: // http://ras.arbitr.ru
6. Постановление Арбитражного суда Уральского округа от 04.05.2018 по делу № А60-43691/2013 [Электронный ресурс] // Режим доступа: // http://ras.arbitr.ru
7. Постановление Арбитражного суда Московского округа от 10.09.2018 по делу № А40-161647/2015 [Электронный ресурс] // Режим доступа: // http://ras.arbitr.ru
8. Шиткина И.С. Ответственность фактически контролирующих лиц в корпоративном праве // Закон. – 2018. – № 7. – С. 114-133.